CZ: extension of the crime of defamation on legal persons

by Jan Fučík

Despite lobbying by media organizations, the Parliament of the Czech Republic has adopted an amended law extending the crime of defamation to legal persons. Broadly speaking, the Czech Republic did not abolish the criminalization of defamation for individuals but instead has introduced the criminalization of defamation for legal entities.

The parliament adopted Act no.183/2016 Coll. amending Act no. 418/2011 Coll., on criminal liability of legal persons and proceedings against them, as amended, on 24 May 2016. The new law will come into force on 1 January 2017.

This amendment of the Czech law extends criminal penalties on legal entities for defamation. Ninety-nine percent of media providers, including local media and even online media, are legal persons.

According to the new law, penalties can be imposed for crimes committed by a legal person, such as the dissolution of the legal person, confiscation of property, fines, and confiscation and prohibition of activities. The criminal act of defamation is defined rather vaguely in the law. This allows the misuse of the law to criminalize freedom of expression, and as a result, the media will avoid controversial topics which can threaten them existentially due to the risk of criminal sanctions.

Therefore, the global trend, promoted by international organizations for the protection of human rights, including the European Court of Human Rights (ECtHR), is to decriminalize defamation for individuals due to its effect on freedom of expression. Criminalization of defamation has a deterrent effect (chilling effect) on media freedom and public debates. Journalists and the media are prosecuted for their critical contributions in discussions published in the media on matters of public interest by the authorities who are abusing the possibility of criminal prosecution.

From the perspective of the ECtHR, it is possible to impose civil and criminal penalties for defamation. On the other hand, it should be noted that the ECtHR significantly narrows the space for a custodial sentence, which should be imposed only in exceptional circumstances.

For example, in the case Marchenko v. Ukraine, the ECtHR emphasized that the defamation occurred in the context of the debate on matters of public interest, and that imprisonment is unacceptable due to its deterrent effect. Although the ECtHR actually ruled that a custodial sentence was imposed in a conditional decision and ultimately not executed, the fact remains that such sanctions, by nature, must have a deterrent effect on public debate.

In several decisions in recent years - then referring to the Resolution of the Parliamentary Assembly of the Council of Europe for the decriminalization of defamation in 2007 - the ECtHR has urged States to abolish imprisonment for defamation altogether.

Jan Fučík works for Česká televize in Prague.

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